BVA9509688
DOCKET NO. 90-28 812 ) DATE
)
)
On appeal from decisions of the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased (compensable) disability
evaluation for service-connected residuals of a fracture of
the left jaw.
2. Entitlement to a permanent and total disability rating
for pension purposes.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Alan S. Peevy, Associate Counsel
INTRODUCTION
The veteran had active military service from January 1953 to
January 1955.
This case is before the Board of Veterans' Appeals (Board) on
appeal from decisions of the St. Petersburg, Florida,
Regional Office (RO). By rating decision dated in May 1989,
the RO denied entitlement to service connection for an
increased (compensable) rating for service-connected
residuals of a fracture of the left jaw. A notice of
disagreement was received in December 1989, and a statement
of the case was issued in January 1990. A substantive appeal
was received in June 1990. The case was remanded to the RO
by Board decisions in January 1991 and October 1991.
By rating decision dated in May 1992, the RO denied
entitlement to a permanent and total rating for nonservice-
connected disability pension purposes. A notice of
disagreement on this issue was received in August 1992, and a
supplemental statement of the case was furnished to the
veteran and his representative in September 1992. A
substantive appeal was received in October 1992. The case
was once again remanded to the RO by Board decision dated in
June 1993. The veteran has been represented throughout his
appeal by The American Legion.
In a January 1992 letter, the RO notified the veteran of the
denial of entitlement to service connection for residuals of
a fracture of the right jaw on the basis that no new and
material evidence had been received to reopen a prior final
decision on that issue. The veteran filed a notice of
disagreement on the fracture of the right jaw issue in April
1992. In a letter dated January 22, 1993, the RO advised the
veteran of the denial of entitlement to service connection
for the loss of teeth. A notice of disagreement as to this
issue was received in March 1993. Pursuant to the Board's
June 1993 remand, the veteran and his representative were
furnished a supplemental statement of the case in May 1994
addressing the issues of entitlement to service connection
for residuals of a fracture of the right jaw and entitlement
to service connection for loss of teeth. However, a timely
substantive appeal was not received as to either issue, and
they are therefore not in appellate status. 38 U.S.C.A.
§ 7105(a) (West 1991); 38 C.F.R. §§ 20.200, 20.302(b) (1994);
Roy v. Brown, 5 Vet.App. 554, 556 (1993).
CONTENTIONS OF APPELLANT ON APPEAL
It is contended by and on behalf of the veteran that the
veteran's service-connected residuals of a fracture of the
left jaw are of such severity as to warrant a compensable
disability evaluation. The veteran maintains that he has
lost all of his teeth as a result of the fracture. It is
also contended that the veteran is permanently and totally
disabled and that he should therefore be entitled to
nonservice-connected disability pension. He maintains that
he is unable to work due to arm and leg pain as well as chest
pain. The veteran further asserts that when he tries to work
as a painter, the fumes make him dizzy and nauseated. The
Board is requested to resolve all reasonable doubt in the
veteran's favor.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter,
and for the following reasons and bases, it is the decision
of the Board that the preponderance of the evidence is
against entitlement to an increased (compensable) disability
evaluation for service-connected residuals of a fracture of
the left jaw. It is the further decision of the Board that
the evidence supports the claim for entitlement to a
permanent and total disability rating for pension purposes.
FINDINGS OF FACT
1. The veteran's only service-connected disability,
described as residuals of a fracture of the left jaw and
rated noncompensable, does not result in tenderness,
crepitus, loss of range of motion or loss of masticatory
function, and there is no clinical or radiological evidence
of nonunion of the mandible or malunion of the mandible with
displacement.
2. The veteran also suffers from a nonservice-connected
fungus of the feet, hands and inguinal area, rated 10 percent
disabling, chronic obstructive pulmonary disease, rated 10
percent disabling, hiatal hernia with history of reflux
esophagitis, rated 10 percent disabling; and residuals of a
fracture of the right scapula, rated 10 percent disabling.
His other nonservice-connected disabilities which warrant
noncompensable ratings are described as: residuals of a
fracture of the right clavicle; history of a right Colles'
fracture; residuals of a right leg fracture; and history of a
right calcaneus fracture.
3. The veteran was born in April 1932; he has completed
seven years of school; his employment experience includes
work as a roofer and painter.
4. The veteran's various disabilities, along with his age,
limited educational background, and the nature of his
employment experience, render him unable to secure and follow
substantially gainful employment.
CONCLUSIONS OF LAW
1. A compensable evaluation is not warranted for service-
connected residuals of a fracture of the left jaw. 38
U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 3.321 and Part 4,
including 4.40, 4.45 and Codes 9903 and 9904 (1994).
2. The veteran is permanently and totally disabled due to
nonservice-connected disabilities. 38 U.S.C.A. §§ 1502, 1521
(West 199); 38 C.F.R. §§ 3.321, 4.15, 4.16 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Increased Rating.
The initial issue for Board review involves the veteran's
claim that the current severity of his service-connected
residuals of a fracture of the left jaw warrants a
compensable evaluation. Disability evaluations are based
upon the average impairment of earning capacity as
contemplated by the schedule for rating disabilities. 38
U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1994). In
order to evaluate the level of disability and any changes in
condition, it is necessary to consider the complete medical
history of the veteran's condition. Schafrath v. Derwinski,
1 Vet.App. 589, 594 (1991). However, where an increase in
the level of a service-connected disability is at issue, the
primary concern is the present level of disability.
Francisco v. Brown, 7 Vet.App. 55 (1994).
The veteran's original claim for entitlement to service
connection for residuals of a broken jaw was denied by rating
decision dated in July 1987 based on a review of service
medical records and the report of a Department of Veterans
Affairs (VA) medical examination in May 1987, including an x-
ray study which was interpreted as showing no evidence of any
residuals. However, after noting a January 1953 service
dental record which documented an x-ray study of the area of
the tooth number 20 and referred to a fracture of the jaw,
the RO granted entitlement to service connection for
residuals of a fracture of the left jaw by rating decision
dated in May 1989.
VA examination in March 1991 showed the veteran to be
edentulous, but without evident tenderness or limitation of
motion. The veteran reported no complaints of pain with
chewing, and no crepitus was noted. Radiological study
showed the mandible to be intact without evidence of a
fracture. On VA examination in February 1992, no abnormal
mandibular tenderness, nor limitation of range of motion was
noted. Radiological study revealed an intact mandible and no
evidence of a recent or old fracture.
Under the provisions of Diagnostic Code 9903, nonunion of the
mandible with moderate disability will be assigned a 10
percent rating. Under Diagnostic Code 9904, a 10 percent
rating is for application when there is malunion of the
mandible with moderate displacement. It is readily clear
from a review of the medical record that there is no evidence
of either nonunion or malunion of the mandible. Moreover,
there is no evidence of tenderness or loss of motion to
provide a basis for a compensable rating under the provisions
of 38 C.F.R. §§ 4.40, 4.45 (1994) which recognize functional
loss due to pain and interference with movement of the
affected joint. In other words, the preponderance of the
evidence is against a finding that a compensable rating is
warranted at this time for the veteran's service-connected
residuals of a fracture of the left jaw.
It appears that the veteran's main argument is that he has
lost all of his teeth due to the jaw fracture. However,
service connection has not been established for loss of teeth
and, as noted in the introduction, that issue is not before
the Board. Service connection has only been established for
residuals of a fracture of the left jaw. Under the rating
criteria set forth in the applicable regulations, the
requirements for a compensable rating have not been met. The
record also does not support a finding of such an exceptional
or unusual disability picture with resulting interference
with employment or frequent hospitalizations so as to warrant
an extraschedular rating under 38 C.F.R. § 3.321(b) (1994).
Moreover, the positive evidence is not in a state of balance
with the negative evidence so as to otherwise warrant
allowance of the veteran's claim as to this issue. 38
U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1
Vet.App. 49 (1990).
II. Nonservice-Connected Disability Pension.
The second issue before the Board concerns the veteran's
claim for entitlement to a permanent and total rating for
nonservice-connected disability pension purposes. Statutory
law as enacted by the Congress charges a claimant for VA
benefits with the initial burden of presenting evidence of a
well-grounded claim. 38 U.S.C.A. § 5107(a) (West 1991). A
well-grounded claim has been defined by the Court as "a
plausible claim, one which is meritorious on its own or
capable of substantiation." Murphy v. Derwinski, 1 Vet.App.
78, 91 (1990). Moreover, when considering whether a claim is
well-grounded, the supporting evidence is presumed to be
true. King v. Brown, 5 Vet.App. 19, 21 (1993). After
considering the veteran's assertions regarding employment
difficulties in light of the medical record which documents
the existence of several disorders, the Board finds that the
veteran has met the minimal threshold requirement of
presenting a well-grounded claim. 38 U.S.C.A. § 5107(a) (West
1991).
The RO's most recent rating of the veteran's disabilities is
set forth in a May 1995 rating decision. In that rating, the
RO determined that the veteran's service-connected residuals
of a fracture of the left jaw was noncompensable. The RO
further determined that separate 10 percent evaluations were
warranted for nonservice-connected fungus infection of the
feet, hands and inguinal area, chronic obstructive pulmonary
disease and a hiatal hernia with history of reflux
esophagitis. The following nonservice-connected disabilities
were assigned noncompensable ratings: (1) residuals of a
fracture of the right clavicle; (2) loss of teeth; (3)
history of right Colles' fracture; (4) residuals of a
fracture of the right leg; and (5) history of a right
calcaneus fracture. The RO assigned a combined rating of 30
percent. The RO found no evidence of record to showing a
nervous condition due to head injury, and it appears the RO
also found no evidence of the claimed residuals of a fracture
of the right jaw.
With regard to the nonservice-connected fungus infection of
the feet, hands, and inguinal area, the 10 percent rating
assigned for this disability under Code 7806 contemplates
such an infection with exfoliation, exudation or itching
involving an exposed surface or an extensive area. The next
higher rating of 30 percent under this Code requires constant
exudation or itching, extensive lesions, or marked
disfigurement. The February 1992 VA examination report
references a history of tinea manus, cruris and pedis from
about 1987 which cleared in one month with medication. At
the time of the 1992 VA examination, it was reported that
there had recently been some recurrence of the tinea manus
and cruris with a diffuse erythema over the dorsal aspect of
the right wrist and both hands with mild scaling and the
changes of active tinea cruris. However, there is no
evidence of record to support a finding of constant exudation
or itching, extensive lesions or marked disfigurement so as
to warrant a rating in excess of 10 percent at this time.
The veteran's chronic obstructive pulmonary disease is also
rated as 10 percent disabling. Under Code 6600 for chronic
bronchitis, the next higher rating of 30 percent requires
evidence of moderately severe disability manifested by
symptoms such as persistent cough at intervals throughout the
day, considerable expectoration, considerable dyspnea on
exercise, rales throughout the chest and beginning chronic
airway obstruction. A 30 percent rating for pulmonary
emphysema under Code 6603 is for application when there is
evidence of moderate disability with moderate dyspnea
occurring after climbing one flight of steps or walking one
block without stopping; ventilatory impairment of severe
degree confirmed by pulmonary function tests with marked
impairment of health.
On VA examination in February 1992, the veteran's lungs were
clear to auscultation and percussion and there was no
radiological evidence of active disease. While the results
of a pulmonary function test initially were interpreted as
showing possible severe obstruction, a second test indicated
possible moderate obstruction. Moreover, the veteran
reported that he was unaware of any dyspnea when ambulating
at normal pace on level ground and was unaware of any
wheezing, cough, sputum or signs of respiratory infection.
The examiner noted that the veteran's pulmonary disability
had been associated with exertional dyspnea after about two
flights of stairs. Comparing the reported symptomatology
with the criteria under the applicable Codes, the Board is
unable to find that the requirements for a rating in excess
of 10 percent have been met, nor does the veteran's pulmonary
disability picture more nearly approximate the requirements
for the next higher rating. 38 C.F.R. § 4.7 (1994).
A 10 percent rating has also been assigned for a hiatal
hernia with history of reflux esophagitis. Under Code 7346,
the next higher rating of 30 percent will be assigned when
there is persistent recurrent epigastric distress with
dysphagia, pyrosis, and regurgitation, accompanied by
substernal or arm or shoulder pain, productive of
considerable impairment of health. On VA examination in
February 1992, the veteran reported several occasions of
epigastric distress. No abdominal tenderness, visceromegaly
or abnormal masses were noted on clinical examination. There
was normal, active peristalsis and no costovertebral angle
tenderness. Radiological examination revealed a small to
moderate-sized hiatus hernia which was partially reducible,
but no gastroesophageal reflux or peptic esophagitis was
demonstrated. It was noted that there had been an interval
increase in the size of the hiatus hernia since a G.I. series
conducted in 1987, but that there was resolution of the
peptic esophagitis. Private medical reports show treatment
for related complaints in early 1994. The veteran reported
being nauseated on and off for the previous 4 months with
occasional vomiting. A barium swallow and an upper G.I.
series resulted in impressions of small sliding type hiatal
hernia, otherwise unremarkable barium swallow and
unremarkable upper G.I. series except for slightly suboptimal
visualization of the 2nd portion of the duodenum due to
spasticity.
In view of the above, the Board is unable to find support for
a finding of persistent epigastric distress with dysphagia,
pyrosis, and regurgitation so as to result in considerable
impairment of health so as to warrant a rating in excess of
10 percent. His epigastric distress can best be described as
occasional in frequency and is thus already contemplated
under the existing 10 percent evaluation.
With regard to the veteran's other disabilities, the record
does not show that the requirements for compensable ratings
have been met. A private medical report dated in February
1994 refers to the fact that the veteran wears dentures, thus
indicating that the loss of masticatory surface can be
restored by suitable prosthesis. The noncompensable rating
under Code 9913 is therefore appropriate. Radiological study
of the veteran's right clavicle in February 1992 showed an
old healed fracture which supports a noncompensable rating
under Code 5203. However, x-rays showed some deformity of
the scapula having the appearance of a residual from an old
fracture. Therefore, though not listed by the RO among the
veteran's various disabilities, the Board finds that a 10
percent rating is warranted for malunion of the right scapula
under Code 5203.
Private medical records dated in 1988 and 1989 document
treatment for injuries sustained when the veteran reportedly
fell off a roof. A right calcaneal fracture and a right
Colles fracture were treated by casts. X-ray study of the
wrist showed fair alignment with some slight, but not
significant, angulation. The calcaneal fracture was
described as an intraarticular tongue type which was
minimally displaced. The February 1992 VA examination report
contains no references to complaints or clinical findings
related to either of these injuries. With regard to the
wrist disorder, there is no evidence of ankylosis or
limitation of motion so as to warrant compensable ratings
under Codes 5214 or 5215. Likewise, there is no evidence
showing moderate disability of the right foot so as to
warrant a compensable rating for residuals of the right
calcaneus fracture under the criteria set forth in Codes 5283
or 5284. Moreover, although VA examination in May 1987
resulted in radiological evidence of a deformity of the lower
right fibular shaft attributable to a healed fracture, the
record does not show any resulting disability so as to allow
a compensable rating for right leg disability under Code
5262.
The medical record contains some references to a psychiatric
disorder. However, VA psychiatric consultation in May 1987
revealed no evidence of psychotic behavior. No thought
disorder was noted, and the veteran did not appear to be
depressed or anxious. The reported diagnosis was alcoholism
in remission. While an October 1987 private medical report
listed an impression of some tension with a tendency to
depression, no psychiatric complaints or symptoms were listed
in the report of the February 1992 VA examination.
Accordingly, the Board finds no basis for finding that the
veteran has a psychiatric disorder for purposes of his claim.
To summarize to this point, the Board finds that a 10 percent
rating is warranted for malunion of the right scapula under
Code 5203. After reviewing the medical record, the Board
finds that the totality of the evidence supports the RO's
assignment of disability evaluations for the veteran's other
shown disorders. Accordingly, under the provisions of 38
C.F.R. § 4.25 (1994), the veteran's combined disability
rating remains 30 percent. The Board notes here that such a
combined rating does not meet the schedular requirements for
a permanent and total rating under 38 C.F.R. § 4.16 (1994).
Although the veteran does not meet the schedular
requirements, he suffers from a number of disabilities, and
he has a limited education, not having attended high school.
He has experience as a painter and roofer, but he fell from a
roof while trying to work a few years ago. Overall, his
employment record is poor, reflecting an increasingly
marginal ability to work in recent years. He was born in
1932. Thus, he is now 63 years old, which in combination
with the increasingly marginal nature of his work in recent
years, raises serious doubts about his capacity to engage in
substantially gainful employment. Taking all factors into
account, the evidence is in equipoise regarding the question
of whether the veteran is now able to work. Accordingly, a
basis exists for favorable action on the pension claim under
the provisions of 38 C.F.R. § 3.321(b)(2) (1994) in
conjunction with the provisions pertaining to benefit of
doubt in 38 U.S.C.A. § 5107(b) (West 1991). The claim for
a permanent and total rating for pension purposes must
therefore be allowed.
ORDER
With regard to the claim for an increased rating for
residuals of a fracture of the jaw, the appeal is denied.
With regard to the claim for a permanent and total rating for
pension purposes, the appeal is granted.
G.H. SHUFELT
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting
less than the complete benefit, or benefits, sought on appeal
is appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the agency
of original jurisdiction on or after November 18, 1988.
Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision
which you have received is your notice of the action taken on
your appeal by the Board of Veterans' Appeals.